DEAN v ASSOCIATE MINISTER OF IMMIGRATION [2019] NZCA 343

DEAN v ASSOCIATE MINISTER OF IMMIGRATION [2019] NZCA 343 [30 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA615/2018[2019] NZCA 343BETWEEN FARISHA FARINA DEANAppellantAND ASSOCIATE MINISTER OFIMMIGRATIONRespondentHearing: 23 May 2019Court: Stevens, Duffy and Dobson JJCounsel: R J Hooker and M G P Martin for AppellantN Butler and T Witten-Sage for RespondentJudgment: 30 July 2019 at 1.00 pmJUDGMENT OF THE COURTA The application for leave to adduce further evidence is declined.B The appeal is dismissed.C The appellant must pay the respondent costs for a standard appeal on a band Abasis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Ms Dean is unlawfully in New Zealand and is subject to a deportation order.She asked the Associate Minister of Immigration (the Associate Minister) to interveneand take steps that would allow a fresh consideration of her immigration status, but hedeclined to do so. She then sought judicial review of the Associate Minister'sdecision, but the proceeding was dismissed by Churchman J.1 She now appealsagainst that decision.[2] In support of her appeal Ms Dean sought leave to adduce fresh evidence in theform of newspaper articles of statements made by the Minister of Immigration.However, when her appeal was heard she did not advance this application.Accordingly, it is declined. Even if the application were advanced, it would still havebeen declined, because we were satisfied the proposed evidence was not cogent.Facts[3] The essential facts are not in dispute. Ms Dean is a Fijian national who arrivedin New Zealand in January 2009 and was granted a visitor's visa for one month.She was subsequently granted a further visitor's visa which expired in October 2009.[4] In April 2009 Ms Dean met Abdul Saleem Hussein and in July 2009 theycommenced a de facto relationship. He is also a Fijian national however he hasNew Zealand residence. They entered into a relationship, which led Ms Dean to applyin October 2009 for a partnership-based work permit. Her application was refused on5 March 2010 because Immigration New Zealand (INZ) did not accept the couples'assertion that they were in a genuine and stable de facto relationship. Mr Hussein wasalready married and there was no evidence to establish the marriage was at an end.INZ considered the couple were not in an exclusive relationship. Ms Dean was granteda short-term visitor's visa valid to 5 April 2010 to allow her to leave New Zealandlawfully. She did not do so and has since remained in New Zealand.[5] On 21 June 2011 Ms Dean was served with a deportation liability notice2 anda deportation order.3 She then began a series of procedural steps underthe Immigration Act 2009 (the Act) to avoid deportation.[6] In 2012 and 2013 Ms Dean made requests under s 61 of the Act for work visasto be issued to her. As someone who was the subject of a deportation order she did1 Dean v Associate Minister of Immigration [2018] NZHC 2455.2 Issued under s 154 of the Immigration Act 2009.3 Issued under s 175 of the Immigration Act.not come within s 61. Her requests were refused. In 2014 Ms Dean askedthe Associate Minister to cancel her deportation liability and for her to be granted avisitor's visa to allow her to apply for a resident's visa under the partnership category.In April 2015 the Associate Minister declined to intervene.[7] On 11 August 2015 Ms Dean made a second request for the Associate Ministerto cancel the deportation order, which was refused on 18 August 2015. In September2015, Ms Dean applied for judicial review of that decision. On 15 February 2016the proceeding settled, and later in 2016 INZ officers made a further assessment ofwhether to cancel the deportation order. On 12 August 2016 an INZ officer refused tocancel the order and Ms Dean was given 14 days from 15 August to leaveNew Zealand.[8] There were further exchanges with INZ. On 18 August 2016 Mr Husseincontacted INZ and was told he was not an eligible sponsor. Ms Dean obtained a copyof her INZ file and learned that Mr Hussein was described as a "family violenceoffender" who had been served with a final protection order fromthe Waitakere District Court in 2010. This description was partially incorrect insofaras Mr Hussein has no criminal offences for family violence.[9] On 7 September 2016 Ms Dean brought further proceedings to judiciallyreview the recent refusal to cancel the deportation order and she obtained interim reliefpreventing her from being deported.4 The following year those judicial reviewproceedings settled, and a different INZ officer, Damon Treadaway, undertook anassessment of her request. Ms Dean provided him with additional information on herrelationship with Mr Hussein, including information relevant to New Zealand'sobligations under relevant international conventions.[10] Ms Dean was interviewed by officer Treadaway on 17 August 2017. At theend of the interview officer Treadaway confirmed that all Ms Dean's previous INZfiles were available to him, and that he had no concerns her relationship withMr Hussein was genuine. Later in September 2017 officer Treadaway interviewed4 Dean v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC588.Mr Hussein. Then on 11 October 2017 officer Treadaway decided not to cancelthe deportation order and Ms Dean was given until 10 November 2017 to leaveNew Zealand.[11] This prompted Ms Dean to request the Ministerial intervention through theassistance of the Member of Parliament for Mangere, the Honourable Aupito Sio, whowrote to the Associate Minister requesting he intervene.[12] The request to the Associate Minister included a 10 page document attaching:the first letter Ms Dean received from INZ declining her visa application,the deportation liability notice and deportation order, correspondence aboutMr Hussein's lack of criminal history, the High Court decision granting interim relief,records of officer Treadaway's interviews with Ms Dean and Mr Hussein, officerTreadaway's decision not to cancel the deportation order and other evidence Ms Deanprovided in support of her relationship.[13] This request was forwarded to the Ministerials Team of INZ, who providedthe Associate Minister with a briefing paper dated 13 April 2018. The briefing papersummarised representations made on behalf of Ms Dean and her immigration history.It identified relevant issues for the Associate Minister's attention and the relevantimmigration instructions and legislation as well as New Zealand's internationalobligations. Regarding the latter, the briefing paper noted that the Associate Ministerhad already been briefed on the relevance and importance of international obligationsin decision making on immigration related cases.[14] The briefing paper presented the Associate Minister with four possible optionsfor him to take. They were: (a) cancelling Ms Dean's deportation liability and grantinga 12-month open work visa under s 61 of the Act, subject to relevant requirements;(b) cancelling the deportation liability and granting a 12 month open work visa unders 61, subject to health and character requirements and evidence that Mr Husseinsupports the request; (c) declining to intervene, but cancelling the period of prohibitionunder s 182 of the Act; and (d) declining to intervene.[15] On 19 April 2019 the Associate Minister decided that he was not prepared tointervene in Ms Dean's case, which meant that she was liable for deportation at thediscretion of INZ.[16] Ms Dean first responded by judicially reviewing officer Treadaway's decision.She then withdrew those proceedings and applied for judicial review ofthe Associate Minister's decision, which is now the subject of this appeal.The High Court decision[17] There were two causes of action. The first alleged the briefing paper forthe Associate Minister was deficient, imbalanced and contained errors, all of whichhad led to an irrational decision. Essentially the first cause of action alleged twoerrors: (a) the relationship between Ms Dean and Mr Hussein was presented inthe briefing paper as open to question, when officer Treadaway had already acceptedthe couple were in a genuine relationship, which gave them a pathway to residenceunder the partnership category; and (b) Mr Hussein was presented as someone who"may be an eligible supporting partner" when he met the requisite criteria. In addition,Ms Dean contended that INZ's failure at the outset to complete a proper assessmentof her relationship with Mr Hussein had contributed to her unlawful status inNew Zealand.[18] The second cause of action alleged the decision was unreasonable forthe following reasons. Ms Dean and Mr Hussein had been living together in a genuineand stable relationship since 2009 and had completed a cultural marriage.Officer Treadaway accepted their relationship was genuine. Mr Hussein qualifies asan eligible sponsor. Ms Dean has a pathway to residence. Ms Dean is innon-communication with her family in Fiji and has been disowned. To expectMr Hussein to return to Fiji with Ms Dean would force him to be separated from hisNew Zealand citizen children. Mr Hussein is unable to return to Fiji for financialreasons, and the Associate Minister's decision was said to be inconsistent withNew Zealand's international obligations, in particular arts 2, 13, 17 and 23 ofthe International Covenant on Civil & Political Rights (the ICCPR).[19] The Judge rejected Ms Dean's contentions. In a carefully considered andcomprehensive decision, the Judge concluded that the briefing paper tothe Associate Minister was not misleading, deficient, imbalanced or erroneous.5Neither was the decision found to be unreasonable.6 Accordingly, the decisionthe Associate Minister made was one that was available to him, particularly in light ofthe limited basis on which his decision is amenable to judicial review.7Grounds of appeal[20] Ms Dean contends the Judge's findings on the briefing paper and its effect onthe Associate Minister's decision were wrong in fact and in law. In her notice of appealshe identifies six errors to support this ground of appeal. Four of those errors relate toalleged factual errors or omissions in the briefing paper, which she contends establishthe unreasonableness of the Associate Minister's decision. The fifth error isessentially a complaint that the Associate Minister should have provided an affidavitsetting out his reasoning process, the absence of which has adversely influenced theJudge. The sixth is essentially an argument the Associate Minister's decision isunreasonable when viewed in the context of Ms Dean's interactions with INZ, herrelationship with Mr Hussein and the difficulties the couple will face if she is obligedto leave New Zealand.Statutory framework relevant to Ms Dean[21] The statutory process for removal of persons unlawfully in New Zealandcommences with them becoming "liable for deportation" and proceeds to the pointwhere deportation orders are served, and then executed. Persons who are liable fordeportation have limited rights of appeal which must be exercised within a prescribedtime frame.8 Deportation orders cannot be served until the time for appeal againstliability for deportation has expired, or the appeal has been determined.95 Dean v Associate Minister of Immigration, above n 1, at [53].6 At [67].7 Immigration Act, ss 11 and 172.8 Section 154(2).9 Sections 175 and 175A.[22] However, deportation orders can be served immediately on someone who wasunlawfully in New Zealand before 2 am on 29 November 2010, who continues to beunlawfully in New Zealand and who has no right of appeal against liability fordeportation.10 Ms Dean appears to be within this category because her circumstancessatisfy all the statutory requirements.[23] The Act provides the Associate Minister with two specific powers to regularisethe status of someone who is in New Zealand unlawfully. Section 61 applies incircumstances where a person is in New Zealand unlawfully, but is not yet subject toa deportation order. Section 172 applies in circumstances where a person is "liable fordeportation".[24] Section 172 permits the Associate Minister to cancel "liability fordeportation". It relevantly provides:172 Minister may cancel or suspend liability for deportation(1) The Minister may at any time, by written notice, cancel a person'sliability for deportation.(2A) The Minister may exercise his or her powers under this sectionwhether or not the person who is liable for deportation—(b) has purported to apply to the Minister for any other reason.(3) Where a person fails to comply with the conditions stated in a noticeunder subsection (2),—(a) the Minister may reactivate the person's liability fordeportation by causing a deportation liability notice to beserved on the person that sets out the grounds of thereactivation; and(b) subject to section 175A(4), the person has 28 days from thedate the deportation liability notice is served to leaveNew Zealand.(5) The decision to cancel or suspend a person's liability for deportationis in the absolute discretion of the Minister.10 Section 175A(5)(c).[25] The Act provides no specific power for ministerial cancellation of a deportationorder once made. The position is different for INZ officers to whom s 177 of the Actspecifically gives such power.11[26] Ms Dean requested the Associate Minister grant her a work visa under s 61 ofthe Act. However, she was not eligible for consideration under that section becauseshe is someone for whom a deportation order is in force. Rather than decline therequest, INZ responded by treating the application as made under s 172 and it wasreferred to the Associate Minister on this basis.[27] Counsel for the Associate Minister in written submissions suggested thatbecause liability for deportation is a necessary precondition to a deportation order onceliability for deportation is cancelled, the deportation order would necessarily fall awayas well.12 The Associate Minister would then be free, were he so minded, to issueMs Dean a visa under s 61, thus regularising her immigration status in New Zealand.This issue was not addressed by counsel for Ms Dean in her written submissions norduring oral argument.[28] Without hearing full argument, we do not consider it appropriate to determinewhether s 172 is available for the Associate Minister to use in this way. Nor is itnecessary for us to do so. That is because the issue before us involves the refusal toexercise s 172. For the reasons which follow we have concluded that the merits ofMs Dean's case did not warrant intervention by the Associate Minister under s 172.Moreover, as there is no other specific power that he might have used to prevent herdeportation, we propose to make no further comment on whether s 172 could providea proper basis for cancellation of the deportation order.[29] Turning to the substance of the matter, s 172(5) provides that the Minister'sdecision is one of absolute discretion. Section 11 of the Act defines "absolutediscretion" as follows:11 In Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190, [2017] 3 NZLR316 at [20] this Court referred to s 177 as "the 'last ditch' opportunity to have a deportation ordercancelled".12 Such an argument was accepted in Singh v Associate Minister of Immigration [2018] NZHC 44 at[31].11 Meaning of absolute discretion of the decision maker(1) If a provision of this Act provides that a matter or decision is in theabsolute discretion of the decision maker concerned, it means that—(a) the matter or decision may not be applied for; and(b) if a person purports to apply for the matter or decision, thereis no obligation on the decision maker to—(i) consider the purported application; or(ii) inquire into the circumstances of the person or anyother person; or(iii) make any further inquiries in respect of anyinformation provided by, or in respect of, the personor any other person; and(c) whether the purported application is considered or not,—(i) the decision maker is not obliged to give reasons forany decision relating to the purported application,other than the reason that this section applies; and(ia) privacy principle 6 (which relates to access topersonal information and is set out in section 6 ofthe Privacy Act 1993) does not apply to any reasonsfor any decision relating to the purported application;and(ii) section 27 of this Act and section 23 of the OfficialInformation Act 1982 do not apply in respect of thepurported application.(2) Subsection (1)(c)(ia) applies to any decision made in relation to apurported application, whether the decision was made before or afterthe commencement of that subsection.[30] This Court has said that "absolute discretion" effectively limits judicial reviewto Wednesbury unreasonableness.13 This necessarily follows from the absence ofspecific statutory considerations or requirements to provide reasons to support thedecision.13 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA592, [2016] NZAR 93 at [46].Discussion[31] Ms Dean contends there are four factual errors or omissions in the briefingpaper, which have led the Associate Minister to make an unreasonable decision.We reject this. First, we do not consider the alleged errors or omissions can exist on aproper reading of the briefing paper. Secondly, even if we were persuaded to acceptthere were such errors we do not view them as having a material impact on thedecision. They could not therefore have led the Associate Minister to make anunreasonable decision.[32] The first factual error is said to arise from what Ms Dean contends is amisleading or inaccurate statement in the briefing paper:If Ms Dean and Ms Hussein are able to satisfy INZ that they are in a genuineand stable relationship, Ms Dean may have a pathway to residence under thePartnership Category.[33] No point is taken about the misuse of a female title regarding Mr Hussein.The rest of the briefing paper and the other material correctly referred to him by theappropriate male title. Rather Ms Dean contends the above passage from the briefingpaper suggested the couple's relationship was yet to be established when in factofficer Treadaway had already decided it was a genuine and stable relationship14.[34] We consider this argument misreads the passage and takes it out of context.It is the penultimate paragraph in a briefing paper that accurately summarisesMs Dean's immigration history in New Zealand. This includes reference to INZ'searlier doubts about the quality of the couple's relationship. The chronologicalsequence of events in the briefing paper is sufficient to show, at the time it was written,that the couple had been together for almost nine years, which strongly suggests theyare in a genuine and stable relationship. The briefing paper also shows thatofficer Treadaway had no recorded doubts about whether the couple were in a genuineand stable relationship. Accordingly, the subject paragraph cannot be said to throwdoubt on the quality of the couple's relationship.14 The Associate Minister has admitted in his statement of defence that after officer Treadawayinterviewed Ms Dean he confirmed to her that he had no concerns her relationship withMr Hussein was genuine.[35] The subject paragraph is also expressed in a way that correctly recognises thelegal route Ms Dean would follow if the deportation order were to be cancelled.The couple would then have to undergo a further assessment including an interview todetermine whether Ms Dean should be granted residence underthe Partnership Category. Officer Treadaway's view on the couple's relationshipcould not bind a subsequent interviewing officer, who would also need to be satisfiedthe couple were in a genuine and stable relationship before he or she could decide togrant Ms Dean residence under that category. Further, being in a genuine and stablerelationship is not the sole criteria for residence under the Partnership Category.Accordingly, it was correct to use "may" when referring to Ms Dean having a pathwayto residence because "may" is appropriately used to describe circumstances that are apresent or future possibility.15[36] The second alleged error in the briefing paper concerns a statement thatMr Hussein's eligibility as a partner and sponsor was yet to be determined, when hemet the criteria specified by INZ's Instructions and INZ accepted he did so. We rejectthis summation of the briefing paper. First, the briefing paper referred to advice fromMs Dean's solicitor, Ms Clarke that in 2016 officer Aiden Rolls had told Mr Husseinhe was not an eligible sponsor because of his history of family violence and havingbeen issued with a protection order. Secondly, the briefing paper advised the AssociateMinister that Immigration Instructions E7.45 set out a character disqualification forsponsors if "convicted of any offence involving domestic violence or of a sexual naturewhether in New Zealand or overseas". The Associate Minister was also advised acertificate from the police confirmed Mr Hussein had no disqualifying convictions.The paper stated that from information available "it appears that Mr Hussein may bean eligible supporting partner".[37] We consider the Associate Minister was properly advised about Mr Hussein'seligibility to be a supporting partner and sponsor. The Associate Minister wascorrectly informed that Mr Hussein had no character disqualifications of the typeprovided for in E7.45 and a certificate from the police confirmed Mr Hussein did nothave any convictions relating to domestic violence or of a sexual nature. The way in15 Jeremy Butterfield Fowler's Dictionary of Modern English Usage (4th ed, Oxford UniversityPress, Oxford, 2015) at 508.which Mr Hussein's family violence history had erroneously influenced officer Rollsearlier on in 2016 was correctly described.[38] We are satisfied the briefing paper correctly expressed the conclusion onMr Hussein's eligibility as a supporting partner and sponsor. It was necessary, in thebriefing paper to qualify the conclusion by reference to "[f]rom the informationavailable", as other relevant information may have come to light if further enquirieswere made as part of assessing whether Ms Dean should be granted residence underthe Partnership Category. The use of the word "may" was also proper because adecision on whether Mr Hussein was an eligible supporting partner and sponsor couldonly be made when an INZ officer was charged with making that decision. At thestage when cancellation of liability for deportation was in issue, it would have beenpremature for the writer of the briefing paper to treat Mr Hussein's eligibility as aforegone conclusion. Instead, the Associate Minister was provided with an accurateaccount of the relevant circumstances from which he could then draw his ownconclusions.[39] The third error in the briefing paper is said to arise because it did not informthe Associate Minister that Ms Dean met the criteria for a residence visa and had aclear pathway to that visa. The third error overlaps the first and second errors.We consider the findings we have made on those errors fully answer Ms Dean'sarguments in relation to the third error.[40] The fourth error which Ms Dean alleged is founded on a false assumption:namely, that INZ had earlier committed errors, which had contributed to her being inNew Zealand unlawfully. We do not accept that INZ had committed any such errors.The doubts an INZ officer had earlier expressed about the quality of the couple'srelationship were not errors. Those doubts were expressed in March 2010 when thecouple's relationship was less than 12 months old. In such circumstances the officermay have had good reason to be doubtful of the quality of the relationship, particularlyin terms of its stability. Ms Dean was then given a short-term visa that would haveallowed her to leave New Zealand before she became unlawfully in New Zealand.She did not do so. Instead, she remained in New Zealand and took no further steps toleave before she was issued with a deportation order.[41] We acknowledge that in 2016 and 2017 separate sets of judicial reviewproceedings which Ms Dean brought against INZ were settled with the result hereligibility for residence under the Partnership Category was reconsidered.However, we have not been provided with detail on those proceedings and are in noposition to determine whether the settlements involved an acknowledgment of erroron the part of INZ. Without such information there is no basis to infer thosesettlements establish earlier errors on the part of INZ.[42] Accordingly, we are not persuaded that Ms Dean's presence in New Zealandunlawfully for nine years can in any way be attributed to conduct by INZ.The approach of this Court to persons unlawfully in New Zealand who seek to remainhere until their immigration status is resolved is well established.16 Removal ofpersons unlawfully in New Zealand is regarded as having no bearing on the way inwhich respective INZ officers might complete their task under s 177 of the Act if askedto cancel a deportation order.17 The same reasoning would also apply to the exerciseof Ministerial cancellation under s 172, and when the person under consideration hasmade a voluntary departure from New Zealand. Accordingly, Ms Dean did not needto remain in New Zealand to pursue her various challenges against INZ's decisions orher requests for residence as Mr Hussein's partner.[43] Ms Dean further argued that the four factual errors on which she relies weresufficient to invoke the principle applied in Air Nelson Ltd v Minister of Transportwhere this Court accepted that the failure of officials to provide the Minister with a"fair, accurate and adequate report" meant the Minister's decision was flawed.18However, this argument misapplies the relevant principle. Ms Dean has failed toestablish that the briefing paper to the Associate Minister was erroneous, materiallyinaccurate or inadequate. Nor can it be said to have been unfair to her. It provided awell-balanced and accurate account of her immigration history in New Zealand andthe factors relevant to her request for cancellation of the deportation order. This is nota case where the Associate Minister's refusal to intervene can be attributed to hisreceiving unfair, inadequate and inaccurate advice from officials.16 Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [10].17 See Fang v Ministry of Business, Innovation and Employment, above n 11, at [81].18 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [53].[44] The fifth error on which Ms Dean relies encompasses three complaints, all ofwhich relate to the absence of an affidavit from the Associate Minister. He did notprovide an affidavit setting out the matters that he considered before he reached hisdecision. Ms Dean contends that in the absence of an affidavit fromthe Associate Minister, the Judge should have drawn adverse inferences againstthe Associate Minister and in favour of the appellant. We reject this argument.Ms Dean relied on Fiordland Venison Ltd v Minister of Agriculture and Fisheries tosupport her argument. However, that decision goes no further than to say that in theabsence of an affidavit from a Minister the Court must attempt to infer the Minster'sreasons from the various pieces of evidence supplied to it.19 Moreover it would beanomalous to draw adverse inferences from the absence of an affidavit fromthe Associate Minister when s 11(1)(c) of the Act specifically exempts him fromproviding reasons for his decision.[45] The Minister was exercising an absolute discretion. He was bound to exerciseit reasonably and in a way that promoted the policy and objects of the Act. Other thanthose limitations, he was free to take whatever relevant considerations he thoughtappropriate into account and to place such weight on them as he chose.The information that was before him is in evidence before us. It plainly shows therewas more than one possible course of action upon which reasonable people may holddiffering opinions as to which is to be preferred. This is the very essence ofadministrative discretion.20[46] Ms Dean is someone who has chosen to remain in New Zealand unlawfullysince 2010. Whilst Mr Hussein has no criminal convictions for family violence, hedoes have a history of family violence in terms of the Domestic Violence Act 1995.The character requirements in E7.45 define "domestic violence" as having themeaning set out in s 3 of the Domestic Violence Act. Accordingly, the fact a finalprotection order was issued against him is not favourable to him qualifying as asuitable sponsor and supporting partner. The Associate Minister was not limited to thecriteria given in E7.45 when he made his assessment of Mr Hussein's character.19 Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA).20 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977]AC 1014 (HL) at 1064.Ms Dean's circumstances for being permitted to remain in New Zealand were notcompelling. There were no children of the relationship. She was in no worse positionthan many other adult persons find themselves after having remained unlawfully inNew Zealand for some considerable time.[47] The sixth error concerns the finding of the Judge that the Associate Minister'sdecision was not unreasonable. Ms Dean submits the decision is inconsistent withINZ's previous internal policy as per paragraph 13 of the Internal AdministrationCircular 10/21 which provides that:Deserving cases involving persons who are prima facie eligible for residenceunder residence instructions, but who are prevented from applying due to theirunlawful status, should usually be granted a temporary entry class visa of atype appropriate to their circumstances to enable them to test their eligibilityfor residence in the normal way.[48] The difficulty Ms Dean faces here is that her argument assumes she is adeserving case who is prima facie eligible for residence. The Associate Minister'srefusal to cancel her liability for deportation necessarily entails him viewing her as notpresenting as a deserving case.[49] Ms Dean then repeats her reliance on the fact her relationship with Mr Husseinis over nine years duration, the determination by officer Treadaway that she is in astable and secure relationship, and she contends she has an eligible partner in apathway to residence. However, the relationship of nine years has developed becauseshe has remained in New Zealand unlawfully. Whilst officer Treadaway found thecouple to be in a stable and genuine relationship at a particular time that factor alonewould not warrant cancellation of her liability for deportation.[50] Whether Mr Hussein is an eligible supporting partner and sponsor andMs Dean has a pathway to residence is not certain. Mr Hussein's history of familyviolence as evidenced by the issue of a final protection order against him reflectspoorly on his suitability as a sponsor and supporting partner. This is not a situationwhere Ms Dean is outside New Zealand making a partnership based temporary entryapplication or is lawfully in New Zealand and seeking residence under the PartnershipCategory and so the E7.45 criteria have no direct application. In the context of anassessment under s 172 it was open to the Associate Minister to take a broad view offamily violence that looks beyond criminal offending of this type. Further, apart fromhis family violence history, Mr Hussein has six criminal convictions for dishonestyoffending, which were also before the Associate Minister. It would have been open tothe Associate Minister to take those matters into account as well.[51] Ms Dean points to her various attempts to regularise her status in New Zealand.However, as we have already stated, she did not need to make those attempts whilst inNew Zealand unlawfully. It was open to the Associate Minister to take her conduct inthis regard into account.[52] Ms Dean refers to the fact that in July 2017 she and the Chief Executive ofthe Ministry of Business, Innovation and Employment entered into a settlementagreement whereby it was agreed that a new decision would be made about Ms Deanunder s 177 of the Act. A different INZ officer from the one who had madethe decision which was the subject of the claims would make the new decision unders 177 of the Act. Ms Dean and Mr Hussein would be interviewed prior to the newdecision being made. Any prejudicial information arising from the informationprovided to the INZ officer or the interviews conducted which the INZ officerproposed to take into account was to be provided to Ms Dean and Mr Hussein forcomment.[53] A new INZ officer (officer Treadaway) assumed responsibility for makingthe s 177 decision and both Ms Dean and Mr Hussein were interviewed by this officer.However, officer Treadaway did not advise Ms Dean of any information that wasprejudicial to her request.21 She now relies on this omission, amongst other things, toshow the Associate Minister's decision is unreasonable.[54] Ms Dean has now had access to the information that was before bothofficer Treadaway and the Associate Minister. She has therefore had full opportunityto make submissions on this information. The omission by officer Treadaway cannotmake the Associate Minister's decision unreasonable, given the broad scope of the21 In the judicial review pleadings this fact was admitted by the Associate Minister at paragraph 24of his statement of defence.absolute discretion given to him by s 11, and particularly when Ms Dean has failed toidentify any prejudicial information to which she might have responded had officerTreadaway informed her about it. Moreover, if Ms Dean wanted to rely on officerTreadaway's omission as being something that has materially affected the outcome ofher request to the Minister she could have pursued specific remedies in that regard.For example, if she considered INZ had failed to follow the procedure it had promisedto follow under the terms of the settlement that was agreed in July 2017 she could haveincluded this as a separate cause of action in her judicial review proceedings, but shehas not done so.22[55] As particulars of unreasonableness, Ms Dean repeats arguments which she hasalready made in the earlier grounds of appeal, namely, that she and Mr Hussein havebeen in a genuine and stable relationship since 2009, officer Treadaway accepted that,and that Mr Hussein is an eligible sponsor under INZ partnership temporary andresidence instructions. She says she has a clear pathway to residence. None of whichis correct. The information given to the Associate Minister in the briefing papercorrectly outlined and characterised the couple's relationship. The Associate Ministerwas not bound by INZ instructions relating to Mr Hussein's eligibility as a sponsorand supporting partner. There were other factors in the available information whichdid not reflect well on Mr Hussein. It cannot be said Ms Dean had a clear pathway toresidence.[56] Ms Dean contends the Associate Minister's decision was inconsistent withNew Zealand's international obligations, in particular arts 2, 13, 17 and 23 ofthe ICCPR and the Associate Minister was advised in the briefing paper that he mustconsider New Zealand's international obligations. Whilst the briefing paper didcontain that advice, the power the Associate Minister was exercising did not requirehim to consider New Zealand's international obligations. In this regard the briefingpaper was more generously expressed in Ms Dean's favour than it needed to be.The Associate Minister may have chosen to take the relevant articles of the ICCPR22 For example, she could have pleaded there has been a breach of legitimate expectation of theprocedure that INZ had promised it would adopt under the settlement terms. Had she done so INZwould then have been properly on notice of the need for it to address this subject.into account, but he was not obliged to do so. And if he chose to consider them, whatweight he placed upon them was for him to decide.[57] Moreover, it cannot be said that when the international obligations on whichMs Dean relies are applied to her case they would make the refusal to prevent herremoval from New Zealand unreasonable.[58] Ms Dean further contends that she is no longer in communication with herfamily in Fiji and has been disowned, to expect Mr Hussein to return to Fiji with herwould force him to be separated from his New Zealand citizen children; and he isunable to return to Fiji for financial reasons. However, these personal factors do notdistinguish Ms Dean from others who have remained in New Zealand unlawfully andthen face deportation, some of whom have been removed together with theirNew Zealand citizen children.23[59] The extent to which the Associate Minister took any or all of Ms Dean'spersonal factors into account and the weight he placed upon them were a matter forhim to determine, subject to the requirement for him to act reasonably.[60] Nothing about the factors on which Ms Dean relies, either individually or incombination, is so compelling that they could make the Associate Minister's refusalto intervene unreasonable. Nor can the Associate Minister's decision be said to thwartthe objects and policies of the Act, and in this way be unreasonable. Insofar asMs Dean sought to rely on statements of the High Court of Australia in Minister forImmigration and Border Protection v SZVFW and the Supreme Court of Queenslandin Arcturus Downs Ltd v Stilgoe (Member of the Land Court of Queensland) regardingthe scope of unreasonableness as a ground of review, we see no essential differencebetween those comments and the approach taken in this country.24[61] Accordingly, we are satisfied the appeal should be dismissed.23 See Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n13; and Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016]NZCA 248, [2016] NZAR 836.24 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, (2018) 357 ALR 408;and Arcturus Downs Ltd v Stilgoe (Member of the Land Court of Queensland) [2019] QSC 84.Result[62] The application for leave to adduce further evidence is declined.[63] The appeal is dismissed.[64] The appellant must pay the respondent costs for a standard appeal on a band Abasis and usual disbursements.Solicitors:Vallant Hooker & Partners, Auckland for AppellantCrown Law Office, Wellington for Respondent